CANDACE J. SMITH, Magistrate Judge.
On November 9, 2016, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Report that Defendant Lawrence Haslon had violated conditions of his supervised release. Defendant was present in Court and represented by Edward L. Metzger, III, and the Government was represented by Assistant United States Attorney (AUSA) Laura K. Voorhees. The proceeding was electronically recorded and is contained in the Court's audio file at KYED-COV_2-06-cr-04-DLB-CJS_20161109_135509; the official record of this proceeding was certified by Amy Blosser, Deputy Clerk.
Upon call of this matter at the Final Revocation Hearing, the parties informed the Court that they had reached an agreement on the pending violations. Specifically, Defendant agreed to plead guilty to Violations 1 and 2 as set forth in the August 16, 2012, Violation Report and Violation 4 as set forth in the November 3, 2016, Memorandum Supplement. In exchange, the Government agreed to move to dismiss Violation 3, and the parties agreed to jointly recommend a sentence of 37 months of imprisonment with no supervision to follow. For the reasons that follow, the parties' agreement is an appropriate disposition of this matter, and therefore it will be
On April 6, 2006, Defendant pleaded guilty to one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1). (R. 20). On September 21, 2006, the presiding District Judge entered Judgment, sentencing Defendant to a 60-month term of imprisonment with an 8-year term of supervised release to follow. (R. 36). On April 19, 2010, Defendant was released from prison to begin his term of supervision. (R. 58).
On August 13, 2012, Probation Officer Robert Cooper submitted to the presiding District Judge a Petition for Warrant or Summons for Offender Under Supervision, setting forth allegations that Defendant violated the terms of his supervised release and requesting a warrant be issued for his arrest so Defendant could be brought before the Court to show cause why his supervision should not be revoked. (R. 47; R. 49). The District Court ordered the issuance of an arrest warrant. (R. 48; R. 50). On November 1, 2016, Defendant was placed in federal custody and was brought before the undersigned on November 3, 2016, for an initial appearance on supervised release charges. (R. 53; R. 54; R. 55).
At the initial appearance, the Court reviewed with Defendant the charged violations as presented to the Court via the Probation Officer's August 16, 2012, Violation Report, and the November 3, 2016, Memorandum Supplement. (R. 58). The court also reviewed with Defendant the potential penalties for the charged violations, and the matter was set for a Final Revocation Hearing.
As discussed above, at the Final Revocation Hearing, counsel informed the Court that the parties had reached an agreement: Defendant was prepared to plead guilty to Violations 1 and 2 as set forth in the August 16, 2012, Violation Report and Violation 4 as set forth in the November 3, 2016, Memorandum Supplement; the United States agreed to move to dismiss Violation 3; and the parties agreed on a recommended sentence of 37 months of incarceration with no supervision to follow.
Prior to taking Defendant's plea, the undersigned confirmed with Defendant that he had received the November 3, 2016, Addendum to Supervised Release Violation Report and understood the potential penalties he faced, including the statutory maximum term of incarceration as well as the applicable Sentencing Guideline range.
As of August 5, 2012, Defendant had not submitted monthly supervision reports for March 2012, April 2012, May 2012, and July 2012.
From January 19, 2011, to March 2012, Defendant resided at his girlfriend's residence at 673 Waycross Road, Cincinnati, Ohio 45240. On March 10, 2012, his girlfriend told the Probation Officer that Defendant moved out of her residence and she did not know where he was staying.
On November 14, 2015, Defendant was arrested and charged in Kentucky court with various traffic and drug offenses. On December 16, 2015, he was charged with being a persistent felony offender second degree. On May 27, 2016, Defendant appeared before the Madison Circuit Court and was sentenced to three years of imprisonment for trafficking in marijuana, 8 ounces to less than 5 pounds, and 90 days of imprisonment for buying/possessing drug paraphernalia. The remaining charges were dismissed.
The undersigned is satisfied from the dialogue with Defendant that he understands the nature of these charged violations, he has had ample opportunity to consult with counsel, and that he enters his guilty plea to these charges knowingly and voluntarily. Therefore, based on Defendant's plea of guilty to these violations, the undersigned finds and will recommend that the District Court find that Defendant has violated the conditions of his supervised release as charged in Violations 1, 2 and 4. The undersigned also recommends the Court grant the Government's Motion to Dismiss Violation 3. The only issue remaining is the appropriate sentence to impose for the admitted violations.
The Court may revoke a term of supervised release after finding that a defendant has violated a condition of supervised release. See 18 U.S.C. § 3583(e)(3). Upon revocation, a court should impose a sentence that is sufficient, but not greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553(a). See id. § 3583(e). The sentencing court is to consider:
18 U.S.C. §§ 3583(e) and 3553(a); see also United States v. Williams, 333 F. App'x 63, 69 (6th Cir. 2009). In determining an appropriate sentence, the applicable policy statements in the Sentencing Guidelines, see United States Sentencing Guideline (U.S.S.G.) Ch. 7, Pt. B, and certain factors set out in 18 U.S.C. § 3553(a), as set forth above, must be considered.
Classification of Defendant's underlying criminal offense results in a maximum term of incarceration upon revocation of his supervised release of 60 months, the underlying offense being a Class A felony. See 18 U.S.C. § 3583(e)(3). United States Sentencing Guideline § 7B1.4(a) suggests a revocation range of imprisonment of 46 to 57 months, based upon Defendant's criminal history category of V and his highest supervised release violation being a Grade A violation. In addition, Defendant may also be placed back on supervised release following any term of imprisonment that were to be imposed upon revocation.
The parties agree that a 37-month term of incarceration is an appropriate sentence. Defense counsel explained the parties' reasoning in recommending a 37-month term of incarceration is to provide Defendant some benefit from the changes made in the drug sentencing laws since the date he was convicted.
AUSA Voorhees confirmed the United States is in agreement with the proposed sentence for the reasons set forth by defense counsel. In addition, she noted that during their negotiations of an appropriate sentence, the parties also discussed that Defendant had served a year on the state charges and he would not seek a reduction in the sentence imposed for the violations of his supervised release for the time spent in state custody. AUSA Voorhees stated that given Defendant had served one year on the state charges and is now subject to an additional 37 months for these supervised release violations, the United States is satisfied that the recommended sentence is appropriate. The Government also orally moved to dismiss Violation 3.
Upon inquiry of the Court, Probation Officer Cooper stated he agrees that a 37-month term of incarceration is appropriate in this circumstance. He also agreed that Defendant should not be sentenced to a further term of supervision.
Upon consideration of the entire record, including the August 16, 2012, Violation Report, the November 3, 2016, Memorandum Supplement, the sentencing materials from the underlying Judgment in this District, the § 3553 factors imported into the § 3583(e) analysis, and the applicable policy statements, the undersigned concludes that the parties' recommended sentence of 37 months is appropriate. While a 37-month term is below the Guidelines range, the Court finds counsel's reasoning compelling and the recommended sentence reasonable and appropriate under the circumstances. A sentence of 37 months is sufficient, but not greater than necessary, to comply with the sentencing factors the Court is to consider under § 3553.
The parties' recommendation that no supervision should follow is also appropriate. Defense counsel argued that under the new version of the sentencing statute, Defendant would have likely been sentenced to a 6-year term of supervised release instead of the 8-year mandatory minimum term of supervision required under the prior version of the statute. Counsel further noted that Defendant has now served six years of his term of supervised release. The Government and the Probation Officer agreed that no further term of supervision is appropriate in this circumstance. The Court also agrees and will recommend no further term of supervision be imposed.
Defendant has waived his right to allocution. (R. 62). Defendant did not waive his right to appeal. The Court advised Defendant of his appellate rights, and he signed an acknowledgment that the Court's Advice of Right to Appeal had been read to him in open court. (R. 61).
Lastly, Defendant has requested that the Court recommend that he be placed at a federal facility as close as possible to his family in Richmond, Kentucky. The Court informed Defendant that it cannot require the Bureau of Prisons to house him at any particular location, but stated it would make the recommendation on his behalf.
Accordingly, the undersigned being satisfied from dialogue with Defendant that he understands the nature of the violations, has had ample opportunity to consult with counsel, and enters his plea of guilty to Violations 1, 2 and 4 knowingly and voluntarily; and the undersigned having considered the pertinent § 3553(a) factors, the advisory Guidelines and policy statements, and the presentations of counsel,
1. The District Court
2. Defendant
3. Defendant's supervised release be
4. Defendant be sentenced to the custody of the Attorney General for a term of imprisonment of
5. The District Court recommend that the Bureau of Prisons place Defendant at a facility as close as possible to his family in Richmond, Kentucky.
The Clerk of Court shall forthwith submit the record in this matter to the presiding District Judge for consideration of this Report and Recommendation, Defendant and the United States having waived the period for the filing of objections hereto.
Since the date of Defendant's conviction, § 841(b)(1)(B)(iii) has been amended to require involvement of 28 grams or more of cocaine base to trigger the enhanced penalty. Thus, had Defendant committed his offense today, his maximum term of imprisonment would be not more than 30 years-a Class B felony. See 18 U.S.C. § 3559(a)(2).
